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03/29/2013

Abbe Gluck: The Federal Common Law of Statutory Interpretation
Michael Ramsey

This is the second paper from the Notre Dame Law School conference I mentioned earlier -- Abbe R. Gluck (Yale Law School), The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes  (William & Mary Law Review, Vol. 54, p. 753, 2013).  Here is the abstract from SSRN:

Modern statutory interpretation is a field dominated by court-created legal presumptions. Federal judges have created hundreds of default rules that range from subject-specific presumptions such as the rule that exemptions in the tax code should be narrowly construed to trans-substantive presumptions such as the presumption that ambiguous statutes should not be interpreted to preempt state law. At the same time, the legal status of statutory interpretation methodology remains almost completely unexplored. What are the rules of statutory interpretation? Almost all jurists and scholars resist the notion that they are “law,” despite their judicial source and also despite the fact that analogous interpretive principles like those from contract and constitutional law are, in fact, treated as some kind of law (be it state law, federal common law, “constitutional common law,” or constitutional law); and despite the fact also that even some statutory interpretation rules — notably Chevron and the thousands of legislated rules of statutory construction scattered across the U.S. Code — are already treated as law without justification for the distinction. Meanwhile, the debate that continues to rage in other contexts over the propriety of federal judicial lawmaking has somehow bypassed the world of statutory interpretation.

The resistance to a law-like treatment of interpretive methodology has many possible explanations, including a judicial desire to retain power or flexibility in an increasingly statutory world, or the simple fact that judges cannot reach consensus on what rules they would treat as law in the first place. The resistance also likely stems from the long shadow that Erie has cast on federal judicial lawmaking. But Erie was case for the world of common law, not one for the Age of Statutes. We had Erie, and then we had Chevron, but along the way we had no analogous case for the statutory era — one that directly addresses what kind of authority federal courts have to create decision-making doctrines for the statutory cases that now dominate the docket

Exploring this possibility — that statutory interpretation methodology is some kind of judge-made law — allows for some significant interventions. A common-law conceptualization of interpretive methodology, for instance, implies that Congress can legislate over it, but courts continue to resist that notion. A law-like conceptualization also would seem to imply that the rules of interpretation should receive stare decisis effect, which they currently do not. There is also the possibility that some of the canons might be federal common law, while others might not. Some, for example, might be understood as constitutional law, while others may seem not to be judicial creations at all. The canons typically have not been disaggregated in this manner, despite their centrality in countless cases.

While not at all originalist in orientation, this outstanding paper raises what I see as a very serious challenge for originalism.  As reflected in last year's book by Justice Scalia and Bryan Garner, canons of interpretation are central to textualist/originalist methodology; indeed, one might say that the book sees the canons as constituting almost the whole of textualist methodology.  Yet the book says almost nothing systematically about the source of the canons.  As Professor Gluck's paper makes clear, the canons are substantially under-theorized but it is at least plausible to conclude that they are judge-made (and evolving) law.  And that conclusion seems hard to reconcile with originalism, at least to the extent that the canons do material work in deciding cases.

(Futher note: a way to deal with this problem is suggested by John McGinnis and Mike Rappaport's "Original Methods Originalism").